Argued: Decided: June 29, 1970

The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court under-
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, 270]
stood to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited 'the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam' because as a 'sincerely conscientious man,' Sisson's interest in not killing in the Vietnam conflict outweighed 'the country's present need for him to be so employed,' 297 F.Supp. 902, 910 (1969).

The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the 'arresting judgment' provision of the Criminal Appeals Act, 18 U.S.C. 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits,
396
U.S. 812
d 65 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.
1
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U.S. 267
, 271]
As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable.

I

A single-count indictment charged that Sisson 'did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty' imposed by the Military Selective Service Act of 1967 and its regulations, in violation of 12 of the Act, 81 Stat. 105, 50 U.S.C. App. 462(a) ( 1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction.

Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because 'the government's military involvement in Vietnam violates international law'; and, second, because Sisson 'reasonably believed the government's military involvement in Vietnam to be illegal.' As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated:

'At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience.'
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U.S. 267
, 272]
At the hearing on appellee's motion to dismiss, the District Judge said that he had 'an open mind' concerning appellee's first and third grounds. However, the court said there was 'nothing to' the second ground, noting that what 'the defendant reasonably believes ... cannot be raised in the way that you propose ... because that does not appear on the face of the indictment.' (App. 49.) The District Court later amplified this conclusion by saying:

'Point 2 is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment.' (App. 52.) ( Emphasis supplied.)

Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only 'in the interest of economy,' because '(i)t was not clear at the time I filed the motion that the government would challenge this fact.' (App. 52.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The Court thereupon found the 'second ground' of the motion to dismiss without merit.

A short time after this hearing, the District Court issued two written opinions, 294 F.Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for
[399
U.S. 267
, 273]
an undeclared was, or could order Sisson to fight in the allegedly 'genocidal war.'

An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would 'offer evidence to show that ( Sisson) properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional.' Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge

'to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war.' 294 F.Supp., at 519.

At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam War to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least
[399
U.S. 267
, 274]
hoped to convince the jury that Sisson lacked the requisite intent to 'wilfully' refuse induction.
2

There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was 'immoral,' 'illegal,' and 'unjust,' and went against 'my principles and my best sense of what was right.' The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his 'moral values come from the same sources (the trial court had) mentioned, religious writings, philosophical beliefs.'

The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance
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U.S. 267
, 275]
on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful,3 the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification.

In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or non-religious conscientious objector issue. The defense argued that the key to the case was whether Sisson had 'wilfully' refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sisson's broad statements that he opposed deferments because they discriminated against the poor,
[399
U.S. 267
, 276]
see n. 2, supra, and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 187-188.)

The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was 'sincere' in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was 'unlawfully, knowingly and wilfully' done.
4
The jury, after deliberating about 20 minutes, brought in a verdict of guilty.

After the trial, the defendant made a timely motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction.
5
Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense
[399
U.S. 267
, 277]
argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense.

The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's 'older contention'6 that the indictment did not charge an offense based on defendant's 'never-abandoned' Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war.

The court first stated the facts of the case, in effect making findings essential to its decision. The opinion
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U.S. 267
, 278]
describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that 'Sisson's table of ultimate values is moral and ethical ... (and) reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion.' The critical finding for what followed was that:

'What another derives from the discipline of a church, Sisson derives from the discipline of conscience.

'... Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.' 297 F.Supp., at 905.

Building on these findings, the court first held that the Free Exercise and Due Process Clauses 'prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam' because as a 'sincerely conscientious man,' Sisson's interest in not killing in the Vietnam conflict outweighed 'the country's present need for him to be so employed.' The District Court also ruled that 6(j) of the Selective Service Act, 50 U.S.C. App. 456(j) (1964 ed., Supp. IV), offends the Establishment Clause because it 'unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings.' 297 F.Supp., at 911.

II

The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the 'arresting judgment' provision of the
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U.S. 267
, 279]
Criminal Appeals Act, 18 U.S.C. 3731.7 The relevant statutory language provides:

'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:

'From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.'

Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one 'arresting a judgment of conviction.' Second, the arrest of judg-
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U.S. 267
, 280]
ment must be for the 'insufficiency of the indictment or information.' And third, the decision must be 'based upon the invalidity or construction of the statute upon which the indictment or information is founded.'8

Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met.